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Justice Antonin Scalia and Criminal Justice Cases Christopher E View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Kentucky Kentucky Law Journal Volume 81 | Issue 1 Article 5 1992 Justice Antonin Scalia and Criminal Justice Cases Christopher E. Smith University of Akron Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Judges Commons, and the Supreme Court of the United States Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Smith, Christopher E. (1992) "Justice Antonin Scalia and Criminal Justice Cases," Kentucky Law Journal: Vol. 81 : Iss. 1 , Article 5. Available at: https://uknowledge.uky.edu/klj/vol81/iss1/5 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Justice Antonin Scalia and Criminal Justice Cases By CHRISTOPHER E. SMrI* INTRODUCTION During the 1980s and early 1990s, the United States Supreme Court underwent a dramatic shift in its composition. Republican Presidents Reagan and Bush had the opportunity to replace five retiring justices with appointees Sandra Day O'Connor,' Antonin Scalia, 2 Anthony Kennedy, 3 David * Associate Professor of Political Science, University of Akron. A.B. 1980, Harvard University; M.Sc. 1981, University of Bristol (England); J.D. 1984, University of Tennessee; Ph.D. 1988, University of Connecticut. I am grateful for the assistance of Scott P. Johnson of The Ohio State University and Linda Fry, Brigette Nunn, and William Smith of the University of Akron. I For example, while O'Connor's predecessor, Justice Potter Stewart, authored an important civil rights precedent that recognized the Thirteenth Amendment as a basis for congressional power to forbid discrimination by private entities, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), O'Connor joined the other conservatives in seeking reconsideration of congressional power to regulate private discriminatory conduct. See Stuart Taylor, Court, 5-4, Votes to Restudy Rights in Minority Suits, N.Y. Tmoa, Apr. 26, 1988, at Al. O'Connor ultimately joined a five-member majority that preserved, but sharply narrowed, the construc- tion of a Thirteenth Amendment-based statute against discrimination. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989). The Court's decision was ultimately reversed by congres- sional enactment of the 1991 Civil Rights Act, which clarified and broadened protections against discrimination by private entities. Andrew Rosenthal, Reaffirming Commitment, Bush Signs Rights Bill, N.Y. Ta.m, Nov. 22, 1991, at Al, All. 2 Chief Justice Warren Burger endorsed affirmative action by the federal government that reserved contracts for minority business enterprises in Fullilove v. Klutznick, 448 U.S. 448 (1980), but the justice appointed upon Burger's retirement, Antonin Scalia, has been a consistent critic of affirmative action both before and after his appointment to the Supreme Court. See Antonin Scalia, The Diseaseas Cure, 1979 WAsH. U. L.Q. 147 (written long before his Supreme Court appointment); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 677 (1987) (Scalia, J., dissenting) ("Mhe only losers in the [affirmative action] process are the [white males] of the country.... The irony is that these individuals- predominantly unknown, unaffluent, unorganized-suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent."). 3Although Justice Lewis Powell provided support for both abortion rights, see City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416,420-21 n.l (1983), and affirmative action, see Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), his successor, Anthony Kennedy, has joined, see Webster v. Reproductive Health Servs., 492 U.S. 490 (1989), or KENTUCKY LAW JOURNAL [VOL.. 81 Souter, 4 and Clarence Thomas 5 who generally have more con- servative judicial philosophies than their predecessors.6 The al- tered composition of the Supreme Court has led to significant authored opinions critical of the Supreme Court's decisions supporting both issues. See Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3044 (1990) (Kennedy, J., dissenting). 4 Justice William Brennan, "the leading liberal Justice," Linda Greenhouse, Brennan, Key Liberal, Quits Supreme Court; Battle for Seat Likely, N.Y. Tnsas, July 21, 1990, at Al, A7, was replaced by David Souter, whose first term performance on the Supreme Court made clear that he "quickly became a supportive member of the contemporary Court's conservative majority." Christopher E. Smith & Scott P. Johnson, Newcomer on the High Court: Justice David Souter and the Supreme Court's 1990 Term, 37 S.D. L. Rnv. 21, 29 (1992). During his first term, Souter provided the decisive fifth vote in seven criminal justice decisions against the assertions of individuals' rights decisions that surely would have gone the other way if Brennan had still been on the Court. See id. at 29-31; Wilson v. Seiter, 111 S. Ct. 2321 (1991) (testing constitutionality of conditions within prisons according to subjective standard assessing officials' intentions, rather than objective assessment of the conditions themselves); Harmelin v. Michigan, 111 S. Ct. 2680 (1991) (finding no constitutional proportionality problems when state applies mandatory life-without-parole sentence for first time offender convicted of possessing 650 grams of cocaine because such punishment is not cruel and unusual in consti- tutional sense); Schad v. Arizona, 111 S. Ct. 2491 (1991) (allowing no reversal on due process grounds for trial judge's failure to instruct jury on lesser included offenses in capital case); Peretz v. United States, 111 S. Ct. 2661 (1991) (finding no Article III problem when, despite the absence of specific statutory authority, U.S. magistrate judges conduct voir dire for felony juries when defendants consent); County of Riverside v. McLaughlin, Ill S. Ct. 1661 (1991) (finding no constitutional violation when arrestees are held in jail for 48 hours prior to an appearance before a magistrate for a determination of probable cause to pursue charges if such proceedings are held as soon as reasonably feasible); Mu'min v. Virginia, Ill S. Ct. 1899 (1991) (holding defendant's right to fair trial not violated when judge refused to question jurors during voir dire about specific contents of news reports to which they had been exposed); Arizona v. Fulminante, 111 S. Ct. 1246 (1991) (holding that a coerced confession may be "harmless error" that does not require new trial). The newest justice, Clarence Thomas, has yet to establish a clear decisional pattern on the Court, but his public statements indicate that he will be more conservative than his predecessor, Thurgood Marshall. See Maureen Dowd, Conservative Black Judge, Clarence Thomas, Is Named to Marshall's Court Seat, N.Y. Tmm, July 2, 1991, at Al, A15 ("Judge Thomas, who has risen in Republican ranks as an advocate of bootstrap conservatism, would present a striking change from Justice Marshall, a civil rights pioneer and an anchor of the Court's declining liberal faction."). In criminal justice cases during his initial term, Justice Thomas stood out as the most conservative of all the justices by writing strong dissenting opinions opposing the majority's decisions to permit a prisoner who was beaten by guards to allege Eighth Amendment violations, see Hudson v. McMillian, 112 S. Ct. 995 (1992), and to permit a new trial for an escaped convict whose death penalty may have been influenced by irrelevant information about his membership in the racist Aryan Brotherhood prisoner organ- ization. See Dawson v. Delaware, 112 S. Ct. 1093 (1992). In Hudson, Thomas's position was even more conservative than that of the Bush Administration, which had "joined prisoners' rights groups in urging the Justices to overturn the 1990 [circuit court] ruling." Linda Greenhouse, High Court Defines New Limit on Force By a Prison Guard, N.Y. Tmm, Feb. 26, 1992, at Al, A16. 6 See Christopher E. Smith, The Supreme Court in Transition:Assessing the Legitimacy of the Leading Legal Institution, 79 Ky. L.J. 317, 318-19 nn.3-5 (1990-91). 1992-93] JUSTICE SCALIA changes in decisions affecting controversial issues7 such as abor- tion,8 freedom of religion, 9 and affirmative action.' 0 Not surpris- ingly, the Supreme Court's emerging conservative majority, usually composed of the recent appointees plus incumbents Chief Justice William Rehnquist and Justice Byron White, has made (and continues to make) a variety of changes in judicial decisions affecting the criminal justice system." Although Justice Antonin Scalia is the only recent appointee who replaced a thoroughly conservative justice (Chief Justice Warren Burger), Scalia's presence on the Court has not been merely a continuation of a dependable conservative vote. Scalia has been ' 2 described as the Court's "most provocative justice' 1 because of his strongly-held views and strident, influential opinions. Unlike his immediate predecessor, Chief Justice Burger, who was sometimes criticized for his inability to provide intellectual influence over the Court's opinions,'" Scalia has quickly become renowned for his See generally Christopher E. Smith, The Supreme Court's Emerging Majority: Re- strainingthe High Court or Transforming Its Role?, 24 AxaoN L. REv. 393 (1990) (illustrating the position that the Supreme Court's contemporary conservative majority engages in "judicial activism" by quickly altering precedents concerning a variety of issues). I See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) (approving statement that "life begins at conception" in state statute that regulated the performance of abortions by doctors and public hospitals). 9 See, e.g., Employment Div., Dept. of Human Resources v.
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